KATHARINE LAI VS. BARBARA LANGBERTÂ (L-3586-15, MIDDLESEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2104-15T3
KATHARINE LAI,
Plaintiff-Appellant,
v.
BARBARA LANGBERT,
Defendant,
and
SHOSHANA SCHIFF, ESQ., and
TRENK, DIPASQUALE, DELLA FERA & SODONO,
P.C.,
Defendants-Respondents.
________________________________________
Submitted March 28, 2017 – Decided May 12, 2017
Before Judges Yannotti and Sapp-Peterson.
On appeal from the Superior Court of New
Jersey, Law Division, Middlesex County, Docket
No. L-3586-15.
Katharine Lai, appellant pro se.
McElroy, Deutsch, Mulvaney & Carpenter, LLP,
attorneys for respondents (Leigh A. DeCotiis,
on the brief).
PER CURIAM
In this appeal, pro se plaintiff Katharine Lai, appeals from
the November 20, 2015 order dismissing her complaint against
defendants Shoshana Schiff, Esq. and her law firm Trenk,
DiPasquale, Della Fera & Sodona, P.C. (the Firm), for failure to
state a claim upon which relief may be granted pursuant to Rule
4:6-2(e), and the December 18, 2015 order denying her motion for
reconsideration. We affirm both orders.
Plaintiff is the principal of Fantastic Realty Company
(Fantastic), which owns property in Highland Park (the Property).
Fantastic leased the property to Dr. Carl Langbert, D.M.D., P.A.,
who operated his dental practice on the premises. According to
plaintiff's complaint, Langbert stopped paying rent in January
2011.
Langbert subsequently retained Schiff, a partner in the Firm
to represent him in connection with a Chapter 7 bankruptcy
proceeding. Plaintiff alleged that she contacted Schiff and
requested that her name be removed from Langbert's creditor list
filed in the bankruptcy proceeding and that Schiff refused to do
so. Plaintiff contends Schiff's refusal to remove her name was
based upon her status as a "Multiple Disabled, Old, Chines[e]
Woman."
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In lieu of a responsive pleading, defendants filed a motion
seeking dismissal of the complaint for failure to state a claim
upon which relief may be granted. The court granted the motion,
stating in its order that "a liberal review of Plaintiff's eight
count complaint fails to allege a factual basis upon which relief
can be granted. The complaint merely contains conclusory language
asserting the type of relief requested." Thereafter, plaintiff
sought reconsideration. The court denied the motion and the
present appeal followed.
On appeal, plaintiff states that the procedural history she
presented to the court demonstrates that defendants intentionally
refused to remove her from the creditor's list because she is an
elderly woman of Chinese ancestry, with multiple disabilities.
She also alleges that she reported the motion judge to the Advisory
Committee on Judicial Conduct, which proved that the motion judge
"signed all the wrongful orders to depraved (sic) [her] Civil &
Legal Rights." Finally plaintiff contends she offered to settle
the matter with defendants in order to "avoid this case to be
published on the Internet" and that if a settlement were reached
the case would be removed from "our website."
A motion to dismiss under Rule 4:6-2(e) should be
"approach[ed] with great caution" and should only be granted in
"the rarest of instances." Printing Mart-Morristown v. Sharp
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Electronics Corp., 116 N.J. 739, 771-72 (1989). The trial court
is obliged to view the allegations in the complaint with liberality
and without concern for the plaintiff's ability to prove the facts
alleged in the complaint. Id. at 746. Rather, the court's inquiry
focuses upon "the legal sufficiency of the facts alleged in the
complaint." Donato v. Moldow, 374 N.J. Super. 475, 482 (App. Div.
2005) (citing Printing Mart, supra, 116 N.J. at 746). On appeal,
our standard of review is de novo. Ibid.
We too must examine "'the legal sufficiency of the alleged
facts apparent on the face of the challenged complaint.'" Rieder
v. Dep't of Transp., 221 N.J. Super. 547, 552 (App. Div. 1987)
(quoting P. & J. Autobody v. Miller, 72 N.J. Super. 207, 211 (App.
Div. 1962)). In doing so, we must search "the complaint in depth
and with liberality to ascertain whether the fundament of a cause
of action may be gleaned even from an obscure statement of claim,
opportunity being given to amend if necessary." Leon v. Rite Aid
Corp., 340 N.J. Super. 462, 466 (App. Div. 2001) (quoting Printing
Mart, supra, 116 N.J. at 739) (internal citations omitted)).
Guided by this standard of review, we first observe that none
of the points plaintiff raises addresses the purported errors in
the judge's stated reasons for dismissing her complaint, namely,
the absence of a factual basis set forth in the complaint to
support the various causes of action asserted. Our in-depth and
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liberal evaluation of the pleadings reveals two factual
allegations: (1) defendant Schiff refused to give plaintiff the
debtor's "asset listing"; and, (2) Schiff only saw her as a
multiple-disabled and old Chinese woman, which is why Schiff
repeatedly refused to remove plaintiff's name from the bankruptcy
list as a creditor. No other facts are alleged in the complaint.
The fact that plaintiff is disabled, elderly, and Chinese,
without more, does not assert a claim of discrimination under
either the state or federal Constitutions. At the very least
plaintiff was required to assert some facts from which it may be
gleaned that if proved, a cause of action for discrimination could
be established.
Plaintiff set forth no facts that, if believed, pled the
elements of discrimination, pursuant to 42 U.S.C. § 1983 and 42
U.S.C. § 1981. Because plaintiff failed to set forth sufficient
facts to support her causes of action of action under New Jersey's
Law Against Discrimination could be sustained. See N.J.S.A. 10:5-
1 to -49. Failing to set forth sufficient facts to support her
causes of action, the court properly dismissed her complaint.
Scheidt v. DRS Technologies, Inc., 424 N.J. Super. 188, 193 (App.
Div. 2012).
Plaintiff additionally advanced a negligence claim against
defendants. However, the Firm did not represent plaintiff.
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Therefore, the Firm had no duty to plaintiff, upon which a claim
of negligence could be based.
Finally, turning to plaintiff's appeal of the court's denial
of her motion for reconsideration. Once again, plaintiff has
failed to set forth any facts from which it may be concluded that
the court, in dismissing plaintiff's complaint, overlooked
controlling decisions or misapplied the law to its analysis. See
R. 4:49-2; see also Cummings v. Bahr, 295 N.J. Super. 374-85 (App.
Div. 1996).
Affirmed.
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